Legality of University System of Maryland’s Big Ten vote questioned

As the University of Maryland’s top officials finalized a surprising move to the Big Ten Conference this week, the school’s public governing board went into “emergency” mode and met twice in secret to decide whether it would endorse the change.

Those meetings — unannounced and entirely out of public view — appear to have been in violation of the Maryland Open Meetings Act, according to legal experts. The act lays out rules for gatherings of public entities such as the University System of Maryland’s Board of Regents, which the governor appoints to oversee most of the state’s public colleges and universities.

University system officials said they were unable to produce documentation related to the closed sessions because such documents weren’t created “due to the emergency nature” of the task at hand.

The school’s sparing account of the decision to abandon the Atlantic Coast Conference — an athletic league that Maryland helped create nearly six decades ago — has in part inspired anger and confusion in College Park, as fans, students and even one member of the board expressed dismay that the process was not open and transparent. It appears, from university accounts and a timeline provided Tuesday to The Washington Post, that the board believed it needed to act quickly.

On Sunday afternoon, 12 of the 17 regents participated in a telephone conference with school officials to discuss the possibility of the flagship school in College Park joining the Big Ten, according to a university system spokesman. On Monday at 8:30 a.m., 10 regents gathered in the president’s conference room at the University of Maryland at Baltimore, and four others joined via telephone for a two-hour meeting, during which they voted 13 to 1 to endorse the move.

Regents are allowed to meet in closed session to discuss some issues, but they are required to first take a public vote to close. That didn’t happen for either meeting, according to spokesman Mike Lurie. Legal experts say that was a violation of the Maryland Open Meetings Act.

“The law is unmistakable that you can’t just close the meeting because you feel like it,” said Frank D. LoMonte, executive director of the Student Press Law Center in Arlington County. LoMonte added that the vote could be at risk of being voided.

“With the amount of money at stake here, they would be smart to hit the restart button,” LoMonte said. “If I was the ACC and looking to throw a wrench in the plans . . . I would seize upon this.”

University system officials maintain that both sessions were legal and under the supervision of the state attorney general’s office. But Lurie said the board is “reviewing its policies and procedures to ensure compliance.” Officials with the attorney general’s office declined to comment Tuesday.

When the Sunday meeting was arranged via e-mail Saturday, it was “scheduled as a closed session,” and therefore a vote was not taken, Lurie said. The Monday meeting was considered a continuation of that closed session, he said. The meetings were closed to the public because the regents were receiving legal advice and discussing contractual and financial arrangements.

Maryland officials are under fire from fans, students, alumni and others who say that the decision to leave the ACC after nearly 60 years was made behind their backs and without their input. The board’s lone vote against the proposal came from Regent Tom McMillen, a former congressman and Terrapins basketball star, who wanted coaches, players and others to have a say.

“I thought we should have more of a process,” McMillen said. “The argument is that process kills the offer. I don’t necessarily buy that argument.”

The board is required to give “reasonable advance notice” of meetings so the public can attend, which did not happen for the Sunday or Monday meetings. Reporters who asked where and when the meetings would take place did not receive answers until after the meetings ended.

Lurie again said that the “emergency nature” of the situation kept them from doing so. When asked to explain what the emergency was, Lurie said, “the emergency nature of the meetings related to the need to provide feedback to the University of Maryland, College Park, with respect to its application process with the Big Ten Conference.”

At a news conference in College Park on Monday, hours after the second secret meeting, the Big Ten’s commissioner joined Maryland’s president in announcing the school’s membership in the historically Midwestern conference. A spokesman for the Big Ten did not return requests for comment Tuesday.

When the University of Nebraska joined the Big Ten in 2010, it was quick and quiet, Chancellor Harvey Perlman said.

Perlman said it was unclear whether he needed permission from the University of Nebraska Board of Regents, but he decided it would be best to get its vote of confidence. Nebraska’s regents held a public meeting and voted to support the switch from the Big 12 Conference shortly before the Big Ten announced the move.